“Throughout history, it has been the inaction of those who could have acted; the indifference of those who should have known better; the silence of the voice of justice when it mattered most; that has made it possible for evil to triumph.”
Haile Selassie

Sunday, June 21, 2015

For the past two weeks, Reason, a magazine dedicated to "Free Minds and Free Markets," has been barred by an order from the U.S. District Court for the Southern District of New York from speaking publicly about a grand jury subpoena that court sent to Reason.com.﻿﻿

The subpoena demanded the records of six people who left hyperbolic comments at the website about the federal judge who oversaw the controversial conviction of Silk Road founder Ross Ulbricht. Shortly after the subpoena was issued, the government issued a gag order prohibiting Reason not only from discussing the matter but even acknowledging the existence of the subpoena or the gag order itself. As a wide variety of media outlets have noted, such actions on the part of the government are not only fundamentally misguided and misdirected, they have a tangible chilling effect on free expression by commenters and publications alike.

Yesterday, after preparing an extensive legal brief, Reason asked the US Attorney's Office to join with it in asking that the gag order - now moot and clearly an unconstitutional prior restraint - be lifted. This morning, the US Attorney's Office asked the Court to vacate the order, which it did. We are free to tell the story for the first time.

Preet Bhara, U.S. Attorney

On May 31, Nick Gillespie published a post at Reason.com's Hit & Run blog discussing Silk Road founder Ross Ulbricht's "haunting sentencing letter" to District Court Judge Katherine Forrest, and the judge's harsh response. Gillespie noted that Forrest "more than threw the book" at Ulbricht by giving him a life sentence, which was a punishment "beyond even what prosecutors...asked for."

In the comments section of the post, six readers published reactions that drew the investigative ire of the U.S. Attorney's Office for the Southern District of New York. In a federal grand jury subpoena dated June 2, the U.S. District Court commanded Reason.com to turn over "any and all identifying information" we had about the individuals posting those comments.

...

U.S. Attorney Preet Bharara subpoenaed all of the identifying information we had about the authors of such comments as, "Its (sic) judges like these that should be taken out back and shot." And, "Why waste ammunition? Wood chippers get the message across clearly. Especially if you feed them in feet first." This last comment is a well-known Internet reference to the Coen brothers' movie Fargo.

The subpoena also covered such obviously harmless comments as: "I hope there is a special place in hell reserved for that horrible woman," and "I'd prefer a hellish place on Earth be reserved for her as well."

The comments are hyperbolic, in questionable taste–and fully within the norms of Internet commentary.

It's worth stressing that, under established legal precedent, Reason.com (like any other website) is generally not legally responsible for reader comments posted at our site. Still, the chilling effect on Reason and our commenters is tangible. It takes time, money and resources to challenge, or even simply to comply with, such intrusive demands.

Reason Magazine then took the bold step of informing the anonymous commentators that the U.S. Attorney's Office was demanding that they be identified pursuant to a subpoena. In explaining its decision to the federal prosecutor, Reasons' attorney explained that First Amendment case law protects the right of commenters to speak anonymously, and that Reason would withhold the information of anyone who wished to fight the subpoena. Despite case law to the contrary, Assistant U.S. Attorney Niketh Velamoor disputed that any such free speech rights exist and asked that Reason delay notifying the commenters until he could get a court order prohibiting disclosure of the subpoena. Reason went ahead with the disclosure. The U.S. Attorney's Office then accused Reason Magazine of engaging in obstruction of justice and contempt of court and now indicated Reason would be investigated.

Now that the matter has been resolved, Reason Magazine does a great job of summarizing concerns about the use of the secrecy associated with federal subpoena process to undermine civil liberties:

Reason's experience needs to be understood in a larger context. Especially since the 9/11 attacks, there has been a mounting conflict between the values of free speech and constitutional due process, with government making increasing demands–often under threat of punishment–for all sorts of information from innocent citizens. Coupled with the rise of a secretive and pervasive surveillance state, this tension means that Americans have no way of knowing just how unfree their speech really is.

While it is impossible to fully ascertain the frequency of information requests from local, state, and federal law enforcement, there is every reason to believe websites are subjected to thousands of demands each year. It is also not clear how other websites interpret the type of letter requesting "voluntary" confidentiality that Reason received. How often is that letter sent along with subpoenas? And how often does it achieve its intended effect of securing silence? In other words, does it have the same effect as a gag order?

In 2013, for instance, Mother Jonesreported that Google, Facebook, Twitter, and Microsoft have between them received "tens of thousands of requests for user data from the US government annually," covering hundreds of thousands of accounts. Using corporate transparency reports, the magazine estimated that the companies complied with the demands between 72 percent and 89 percent of the time, and that it's impossible to know how many of those requests were filled without the affected users ever knowing their information had been targeted.

2 comments:

Anonymous
said...

Wow... "chilling" in more ways than one. This story is illustrative of the evisceration of Americans' Constitutional rights and civil rights. I do not hold a doctor of juris prudens; I do not poseess the DNA that would compel me to learn how to "legally" lie and deceive AND receive a license to be paid for doing so (no offense to Ogden and Welsh). This is one reason I have such little- and "little" isn't a strong enough descriptor- respect for attorneys and judges. Preet Bhara puts me in the mind of our local nitwit, the snitty G. Michael Witte- you know, damn the decency, full steam ahead for me to mow down anyone for saying something I do not like.

Face it or not, America is no longer the bastion of freedom our Founders created. No, we are socialist soft police state where the legal system serves more those who run it than the people on the streets.

About Me

I have been an attorney since the Fall of 1987. I have worked in every branch of government, including a stint as a Deputy Attorney General, a clerk for a judge on the Indiana Court of Appeals, and I have worked three sessions at the Indiana State Senate.
During my time as a lawyer, I have worked not only in various government positions, but also in private practice as a trial attorney handing an assortment of mostly civil cases.
I have also been politically active and run this blog in an effort to add my voice to those calling for reform.